Determination of Regulatory Review Period for Purposes of Patent Extension; ENABLEX, 4919-4920 [E6-1072]

Agencies

• Food and Drug Administration
• DEPARTMENT OF HEALTH AND HUMAN SERVICES

[Federal Register Volume 71, Number 19 (Monday, January 30, 2006)]
[Notices]
[Pages 4919-4920]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E6-1072]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Food and Drug Administration

[Docket No. 2005E-0249]


Determination of Regulatory Review Period for Purposes of Patent 
Extension; ENABLEX

AGENCY: Food and Drug Administration, HHS.

ACTION: Notice.

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SUMMARY: The Food and Drug Administration (FDA) has determined the 
regulatory review period for ENABLEX and is publishing this notice of 
that determination as required by law. FDA has made the determination 
because of the submission of an application to the Director of Patents 
and Trademarks, Department of Commerce, for the extension of a patent 
which claims that human drug product.

ADDRESSES: Submit written comments and petitions to the Division of 
Dockets Management (HFA-305), Food and Drug Administration, 5630 
Fishers Lane, rm. 1061, Rockville, MD 20852. Submit electronic comments 
to https://www.fda.gov/dockets/ecomments.

FOR FURTHER INFORMATION CONTACT: Claudia V. Grillo, Office of 
Regulatory Policy (HFD-013), Food and Drug Administration, 5600 Fishers 
Lane, Rockville, MD 20857, 240-453-6681.

SUPPLEMENTARY INFORMATION: The Drug Price Competition and Patent Term 
Restoration Act of 1984 (Public Law 98-417) and the Generic Animal Drug 
and Patent Term Restoration Act (Public Law 100-670) generally provide 
that a patent may be extended for a period of up to 5 years so long as 
the patented item (human drug product, animal drug product, medical 
device, food additive, or color additive) was subject to regulatory 
review by FDA before the item was marketed. Under these acts, a 
product's regulatory review period forms the basis for determining the 
amount of extension an applicant may receive.
    A regulatory review period consists of two periods of time: A 
testing phase and an approval phase. For human drug products, the 
testing phase begins when the exemption to permit the clinical 
investigations of the drug becomes effective and runs until the 
approval phase begins. The approval phase starts with the initial 
submission of an application to market the human drug product and 
continues until FDA grants permission to market the drug product. 
Although only a portion of a regulatory review period may count toward 
the

[[Page 4920]]

actual amount of extension that the Director of Patents and Trademarks 
may award (for example, half the testing phase must be subtracted as 
well as any time that may have occurred before the patent was issued), 
FDA's determination of the length of a regulatory review period for a 
human drug product will include all of the testing phase and approval 
phase as specified in 35 U.S.C. 156(g)(1)(B).
    FDA recently approved for marketing the human drug product ENABLEX 
(darifenacin hydrobromide). ENABLEX is indicated for the treatment of 
overactive bladder with symptoms of urge urinary incontinence, urgency, 
and frequency. Subsequent to this approval, the Patent and Trademark 
Office received a patent term restoration application for ENABLEX (U.S. 
Patent No. 5,096,890) from Novartis International Phamaceutical Ltd., 
and the Patent and Trademark Office requested FDA's assistance in 
determining this patent's eligibility for patent term restoration. In a 
letter dated July 8, 2005, FDA advised the Patent and Trademark Office 
that this human drug product had undergone a regulatory review period 
and that the approval of ENABLEX represented the first permitted 
commercial marketing or use of the product. Shortly thereafter, the 
Patent and Trademark Office requested that FDA determine the product's 
regulatory review period.
    FDA has determined that the applicable regulatory review period for 
ENABLEX is 3,824 days. Of this time, 3,073 days occurred during the 
testing phase of the regulatory review period, while 751 days occurred 
during the approval phase. These periods of time were derived from the 
following dates:
    1. The date an exemption under section 505 of the Federal Food, 
Drug, and Cosmetic Act (the act) (21 U.S.C. 355) became effective: July 
6, 1994. The applicant claims June 13, 1994, as the date the 
investigational new drug application (IND) became effective. However, 
FDA records indicate that the IND effective date was July 6, 1994, 
which was 30 days after FDA receipt of the IND.
    2. The date the application was initially submitted with respect to 
the human drug product under section 505 of the act: December 3, 2002. 
The applicant claims December 30, 2002, as the date the new drug 
application (NDA) for ENABLEX (NDA 21-513) was initially submitted. 
However, FDA records indicate that NDA 21-513 was submitted on December 
3, 2002.
    3. The date the application was approved: December 22, 2004. FDA 
has verified the applicant's claim that NDA 21-513 was approved on 
December 22, 2004.
    This determination of the regulatory review period establishes the 
maximum potential length of a patent extension. However, the U.S. 
Patent and Trademark Office applies several statutory limitations in 
its calculations of the actual period for patent extension. In its 
application for patent extension, this applicant seeks 2,298 days of 
patent term extension.
    Anyone with knowledge that any of the dates as published are 
incorrect may submit to the Division of Dockets Management (see 
ADDRESSES) written or electronic comments and ask for a redetermination 
by March 31, 2006. Furthermore, any interested person may petition FDA 
for a determination regarding whether the applicant for extension acted 
with due diligence during the regulatory review period by July 31, 
2006. To meet its burden, the petition must contain sufficient facts to 
merit an FDA investigation. (See H. Rept. 857, part 1, 98th Cong., 2d 
sess., pp. 41-42, 1984.) Petitions should be in the format specified in 
21 CFR 10.30.
    Comments and petitions should be submitted to the Division of 
Dockets Management. Three copies of any mailed information are to be 
submitted, except that individuals may submit one copy. Comments are to 
be identified with the docket number found in brackets in the heading 
of this document. Comments and petitions may be seen in the Division of 
Dockets Management between 9 a.m. and 4 p.m., Monday through Friday.

    Dated: January 5, 2006.
Jane A. Axelrad,
Associate Director for Policy, Center for Drug Evaluation and Research.
[FR Doc. E6-1072 Filed 1-27-06; 8:45 am]
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